Court File and Parties
COURT FILE NO.: CV-13-480801 DATE: 20170426 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
SANGEETA NAGRARE Plaintiff – and – CARLOS BASCON doing business as SWIRLS CUP CAKES, SWIRLS CUP CAKES (CARLOS BASCON), SWIRLS MBC INC. and ANASTASIOS HOLDINGS INC. Defendants
Counsel: Melissa Chan, for the Plaintiff Gustavo Camelino, for Carlos Bascon doing business as Swirls Cup Cakes, Swirls Cup Cakes (Carlos Bascon), and Swirls MBC Inc. Ryan Truax, for Anastasios Holdings Inc.
HEARD: April 25, 2017
E.M. Morgan J.
Endorsement
[1] The Plaintiff tripped while entering the Swirls Cup Cakes store located at 186 Queen Street South, Mississauga, Ontario. The store is run by the Defendants, Carlos Bascon doing business as Swirls Cup Cakes, Swirls Cup Cakes (Carlos Bascon), and Swirls MBC Inc. (“Swirls”). The Plaintiff caught her foot on the threshold at the doorway of the Swirls store and fell face-first into the store, incurring dental fractures and a head injury.
[2] She has sued Swirls, who was a tenant of the premises. Swirls, in turn, brought a third party claim against the Defendant, Anastasios Holdings Inc. (“Anastasios”), the landlord of the building. Eventually, the Plaintiff amended her claim to include a claim against Anastasios, upon which Swirls’ third party claim against Anastasios became a cross-claim. The Plaintiff’s claim against both Defendants is based on the Occupiers’ Liability Act, SO 1992, c. O.2, and alleges that one or the other or both of them failed to take reasonable care to prevent injury to customers and other invitees to the premises.
[3] As a result of a previous motion, the Plaintiff has agreed to dismiss her claim against Anastasios. In the motion before me, Swirls moves under Rule 20 of the Rules of Civil Procedure for summary judgment dismissing the Plaintiff’s claim against it, and Anastasios moves under the same rule to dismiss the cross-claim against it by Swirls. Both contend that there is no genuine issue requiring a trial.
[4] The Plaintiff was examined for discovery, and in that testimony provided the best description that she could of the accident. There were no witnesses to her fall, and so the only description that will ever be available is from the Plaintiff herself. She has already given that description under oath, and there is no reason to think that it will be more complete if the case proceeds to trial. Indeed, no party suggests that the Plaintiff was other than forthright and thorough in her recounting of the event.
[5] According to the Plaintiff, she simply tripped on the single step up into the store. She was not looking at her feet at the moment she entered the store, so she is not entirely certain how she stumbled, but she did indicate that she saw the step up and simply caught either her toe or her heel on the step. There was no crack in the step, or irregularity in the doorway, or jagged edge on the step or the entrance to the store. There was no obstacle in front of the door or debris on the ground. It was a clear, sunny afternoon. She simply tripped and fell.
[6] The Plaintiff and Swirls have each produced expert reports. They each offered the other to produce their expert for cross-examination, but both declined to do so.
[7] Swirls’ expert reported that the threshold and entrance to the store was properly constructed in compliance with the Ontario Building Code. It was in a good state of repair, was the correct height, width and depth for a riser that forms the threshold to a retail establishment, and was made of the appropriate concrete. In short, there was nothing physically wrong with the threshold on which the Plaintiff tripped.
[8] The Plaintiff’s expert did not comment on the physical attributes of the entrance or threshold, but rather focused his attention on the ‘human factors’ that might have caused the Plaintiff’s fall. Specifically, he emphasized the need for a proper warning sign given the potential tripping hazard represented by the riser at the entrance of the store. While there was a clearly visible warning sign that stated “Watch your steps” at the bottom of the door and just above the threshold, Plaintiff’s expert was of the view that this sign did not suffice to adequately warn invitees of the danger below.
[9] According to Plaintiff’s expert, the warning sign should have been printed in all capital letters rather than in lower case letters. Moreover, Plaintiff’s expert was of the view that the warning sign was not the right colour to provide the necessary level of alertness to any and all who crossed the store’s threshold. He attributed these observations to his study of an American text book on the subject, but could point to no specific jurisdiction which had adopted these measures as legally enforceable policy.
[10] I must confess that I do not understand the need to write the sign in capital letters rather than lower case. The sign is perfectly legible. The lower case letters are clearly printed in white on a red background, and are certainly large enough for anyone to read as they approach the doorway. Indeed, Plaintiff’s expert does not say that the writing was too small; he simply cites a text book that says that a warning sign should be in capital letters rather than lower case. The theory must be that although there is no difference in terms of visibility as between capital and lower case letters of the same size and colour, capital letters would be easier to read.
[11] The difference between capital and lower case print seems to me to be a distinction without a real difference. The lower case letters on the sign were perfectly legible, clearly discernable from several steps away from the door, and effectively no different than had the sign been written in capital letters. Plaintiff’s expert seems to be reaching here for something but has come up with very little.
[12] As for the colour of the sign, Plaintiff’s expert’s view is nonsensical. He opines that red signs such as the one on Swirls’ door generally signify a high level of ‘danger’, whereas orange signs generally signify a ‘warning’ level of hazards, and yellow signs indicate a lower level of ‘caution’. He goes on to explain that since the hazard here was small, the warning sign should have been yellow rather than red.
[13] Frankly, it is unclear why there is a need for a warning sign at all; the riser on which the door is perched is the same as any curb that a pedestrian encounters as she crosses the street and steps up onto the sidewalk. While it is the case that any curb or simple step presents a potential for tripping, not every curb in the city has or needs a warning sign.
[14] That said, Swirls, for greater certainty and erring to the side of extreme caution, did provide a warning sign at the very spot where Plaintiff’s expert says it was necessary. However, in his view that was not enough – or, perhaps, was too much. It was his opinion that the warning was ineffective not because it was too discrete or weak, but because it was too prominent and strong. It is hard to take this expert opinion seriously. It strikes me as a non-complaint rather than a complaint.
[15] That is as good as the Plaintiff’s case gets. There is nothing wrong with the construction of the doorway or the threshold where the Plaintiff tripped; rather, the only complaint is that the warning sign was insufficient for obscure and illogical reasons.
[16] Moreover, the Plaintiff specifically testified that she saw the step and was conscious of it as she entered the store. Accordingly, the debate about the warning sign is in any case moot. The warning sign can do no more than to ensure that a person is aware of the step. The Plaintiff, by her own admission, was aware of the step. To somehow blame the warning sign when the warning was either heeded or not needed is to miss the entire point of a warning sign.
[17] There really is nothing to the Plaintiff’s case. Swirls took good care to construct the entrance properly and to provide safe access to the main doorway into the store. It then went the extra mile and provided a legible and starkly visible warning sign about the step up into the store. There is nothing more it should or could have done. Sometimes a person simply falls and there is no one to blame. Unfortunately, trips happen.
[18] There is no breach of the duty to take reasonable care under the Occupiers’ Liability Act or otherwise, and there is no genuine issue requiring a trial. Plaintiff’s claim is dismissed as against all Defendants.
[19] The dispute between Swirls and Anastosios concerned the definition of ‘occupier’ for the purposes of the Occupiers’ Liability Act. Swirls was of the view that the Plaintiff appears to have tripped on the outside face of the threshold rather than inside the store. Accordingly, it has argued that the accident occurred on a part of the building controlled by the landlord rather than the tenant.
[20] For its part, Anastosios was of the view that both the outside of the threshold and the small area in front of Swirls’ store was included in the lease and was all part of the tenant’s demised premises. Accordingly, it has argued that it does not matter where the Plaintiff tripped since Swirls is the occupier of the entire area.
[21] I do not have to decide which Defendant was right and wrong vis-à-vis the Plaintiff’s claim, as the Plaintiff’s claim is without merit against any possible occupier. Since the Plaintiff’s claim is dismissed, the cross-claim by Swirls against Anastasios is also dismissed.
[22] Swirls is entitled to its costs on a partial indemnity basis, payable by the Plaintiff. Anastasios is entitled to its costs on a partial indemnity basis, shared equally by the Plaintiff and Swirls. After all, Anastasios correctly argues that it was dragged into this litigation in the first place by Swirls, and although the Plaintiff then took up the claim against Anastasios it eventually dropped that claim leaving Anastosios again facing only the cross-claim by Swirls. Anastosios’ burden was equally divided between defending the meritless main claim and defending the unnecessary third party/cross-claim.
[23] All counsel have submitted Cost Outlines. Counsel for Swirls seeks costs in the total amount of just over $19,300, while counsel for Anastasios seeks costs in the total amount of just over $22,300. Neither of these figures is unreasonable on its own.
[24] The action was a rather straightforward one, but it did proceed through discoveries, and substantial summary judgment materials had to be prepared for this motion. I am somewhat surprised that Anastasios’ costs exceed Swirls’ costs, since Swirls bore the brunt of the defense and had to commission an expert report. While Anastasios also brought a summary judgment of its own, that was settled and did not have to be argued in full in court.
[25] Although the claim is dismissed in its entirety, this is not a case where the Plaintiff has lost because of a concocted or exaggerated injury. No one has cast doubt on the Plaintiff’s fall or her injury. She simply had the misfortune of tripping for no apparent reason, and so liability cannot be attributed to anyone.
[26] Costs are discretionary under section 131 of the Courts of Justice Act, and are generally to be awarded in accordance with the factors listed in Rule 57.01 of the Rules of Civil Procedure. This includes the amount claimed and the amount recovered in the proceeding (Rule 57.01(1)(a)), the complexity of the proceeding (Rule 57.01(1)(c)), and, perhaps most importantly under the circumstances, the amount that the unsuccessful party could reasonably expect to pay (Rule 57.01(1)(0.b)). The Plaintiff was genuinely injured, and I hesitate to visit a large cost burden on her; she certainly did not pursue the action in a way that increased the costs beyond what would ordinarily be expected. Moreover, although this is not the fault of any of the counsel, there was inevitably duplication between the efforts of the two Defendants in defending the main claim.
[27] The Plaintiff shall pay costs to both Defendants in the total amount of $10,000, divided as $7,000 payable to Swirls and $3,000 payable to Anastasios. Swirls, in turn, shall pay costs to Anastasios in the amount of $3,000. These amounts are all inclusive of fees, disbursements, and HST.
Morgan J. Released: April 26, 2017
Reasons for Judgment
COURT FILE NO.: CV-13-480801 DATE: 20170428 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
SANGEETA NAGRARE Plaintiff – and – CARLOS BASCON doing business as SWIRLS CUP CAKES, SWIRLS CUP CAKES (CARLOS BASCON), SWIRLS MBC INC. and ANASTASIOS HOLDINGS INC. Defendants
REASONS FOR JUDGMENT
E.M. Morgan J.
Released: April 28, 2017